KH withholds interim CEO candidate names

The KershawHealth Board of Trustees continues to withhold the names of candidates it is interviewing for the position of interim chief executive officer (CEO) of the healthcare organization. The board interviewed one candidate at Springdale Hall Club on Thursday and plans to interview a second candidate at 5:30 p.m. today at the former home of Indigo Jones restaurant on Rutledge Street.

When the board met Thursday to interview the first candidate, the Chronicle-Independent submitted a S.C. Freedom of Information Act (FOIA) request seeking the candidates’ names and resumes. Friday, Board Chair Karen Eckford submitted a response stating that the board “fully intends to comply with all provisions of the (FOIA), including providing information to the press as required by FOIA,” but also stating it would only provide applicants’ names “as soon as we narrow the candidates to no fewer than three candidates.”

Eckford initially said Wednesday that the applicants being interviewed Friday and today are the final two candidates. She said the pool initially started with 28 applicants, that the board’s executive search committee interviewed four of those and that the full board then asked to interview two of those candidates.

Thursday, however, Eckford stated that the two applicants were not the final ones. She said Thursday -- and asserted in Friday’s written response -- that “we have not yet narrowed our search to a final three candidates. We are continuing our process of consideration of additional candidates who are in various stages of the interview and consideration process.”

The S.C. FOIA states that public bodies -- of which the board of trustees is one -- must disclose “all materials, regardless of form, gathered by a public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying.”

Thursday, S.C. Press Association (SCPA) attorney Carmen Maye referred the C-I to a 2007 S.C. Supreme Court ruling on an appeal of a case involving an Upstate newspaper and a Spartanburg County school district. In its ruling, the court rejected the school district’s interpretation that “only those applicants deemed by the agency to be ‘finalists’ are subject to disclosure.” Maye said that if the board is interviewing two finalists, it would not only need to disclose information about those two applicants but about any applicants in the pool from which those interviewees were selected.

After learning of the board’s response Friday, Maye said that by having the search committee interview four of the original 28 applicants, the board has already narrowed the field to a pool of “not fewer than three.”

“The South Carolina open records law requires this public body to share information with the public regarding these potential stewards of public resources,” Maye said.

SCPA Executive Director Bill Rogers said the board is trying to circumvent the law.

“Failing to respond to a FOIA request for the names of the candidates under final consideration for this important job is a blatant abuse of public trust,” Rogers, an advocate for open government in South Carolina, said.

By keeping the names of these candidates secret, the board of trustees is effectively eliminating any public response to the candidates being considered, Rogers said.

“The trustees are circumventing the law, but of equal importance, they are destroying their own credibility,” he added. “An open search gives taxpayers confidence that the proper choice is being made and there is no political insider trading going on. Citizens are demanding more government transparency across our state, and this is not a transparent search. If they have interviewed four candidates, these names should be released under the law.”

Rogers also noted that having a trustee meeting about the search at a private club also sets up a barrier to public participation.

“This is about picking the most qualified candidate, not schmoozing in a back room,” he said.

Rogers noted that there are many cases in South Carolina where public input was eliminated and poor hiring decisions were made.

“The new CEO is going to start work in a cloud of public skepticism,” he said.

Jay Bender, a long-time SCPA attorney, law professor at the University of South Carolina and perhaps S.C.’s most experienced freedom of information litigator, also said the board’s actions are inappropriate and, possibly, illegal.

“First, with respect to meeting in a private club, the board’s response to your request for information about the candidates for the position indicates the board itself considers itself and the hospital as if it were a private club, which is wholly inappropriate for a public hospital,” Bender said.

He also suggested the board should have handled disclosing the identities of the candidates differently.

“If the hospital board had any sense, it would identify three or four prospects for the position and announce who those prospects are and have them meeting with the constituencies of the hospital -- medical staff, support staff, local elected officials and, perhaps most importantly, the public,” Bender said. “What this board is doing is creating a cloud over the head of whoever is going to be hired, which could be dispelled easily by sunshine.”

Finally, Bender said the board’s actions are signaling its intention to violate the law.

“The S.C. Supreme Court has repeatedly interpreted the purpose of the FOIA is to protect against secret government activity. If these board members want a private hospital, they need to work on a different board,” Bender said.

The C-I will be present when the board votes to go into executive session at this evening’s meeting and will have an update Wednesday.